Can a disciplinary investigation be adequate if evidence is withheld?
Mr Hargreaves was an art and design teacher for over 10 years. Prior to the allegation, he had an unblemished record. However, a pupil, A, accused Mr Hargreaves of grabbing him, shoving him against a wall and putting his fingers against the pupil’s throat.
The safeguarding lead for his school interviewed the pupil and his friend who substantiated his claim. They also interviewed several other pupils and teachers who were in the area at Mr Hargreaves's suggestion; however, the other pupils and teachers had no recollection of any such event. They simply had not seen it.
This was firmly a case of Mr Hargreaves’s word against two pupils, but there was nothing to doubt the credibility of the pupils. At the disciplinary hearing, the school did not disclose the statements from the pupils and staff who had not seen anything. Mr Hargreaves did not raise any issues that he had not seen all the evidence or statements at the hearing and the disciplinary panel held that, on the balance of probabilities, the allegation that Mr Hargreaves did grab a pupil and shove him against a wall were correct. Mr Hargreaves was dismissed for gross misconduct. He appealed but this was not upheld.
Mr Hargreaves subsequently brought a claim for unfair dismissal to the ET. His argument centred on the fact that the school’s investigation was inadequate. He argued that neither he, nor the disciplinary panel, had access to the statements taken saying that the staff and students had seen nothing and the decision made had a serious effect on his career. The ET dismissed this, stating that it was the school’s decision to decide who to interview and this was within the reasonable band of responses. Further, it was noted that just because the people interviewed had seen nothing this did not mean that nothing happened.
Mr Hargreaves then brought an appeal to the EAT suggesting that the ET had erred in its approach. The EAT rejected this appeal. The school had conducted a higher standard of investigation, having interviewed the pupils and teachers at Mr Hargreaves's suggestion. They had come to the reasonable assumption that, having seen nothing, the evidence did not provide any substance to the allegation. Mr Hargreaves did not pursue this line in his disciplinary despite his knowledge of these supposed witnesses. As such, the dismissal was held fair.
What does this mean for you or your business, and what should you be doing now?
It is important for an employer to note that any investigation for a disciplinary need not be conducted like a criminal investigation. There is no need for anything to be decided as being beyond reasonable doubt. Nevertheless, if the consequences are serious, an employer should hold itself to a higher standard of investigating than usual.
The key question to answer is whether or not the investigation has been reasonable. In this case, the excluded evidence was immaterial which is why the dismissal was fair. If the evidence could truly have a bearing on the decision made in a disciplinary, it should always be disclosed whether it helps or hinders the employer. The safest option is always to be transparent with everything found in an investigation. This claim may not have got so far if it had disclosed the evidence to Mr Hargreaves and confirmed to him why it was found to be immaterial in the decision making process.
The link to the case can be found HERE.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.